The practice of investigating and assessing liability in automobile accidents no doubt dates back to the invention of the automobile. Over the years, the number and dollar value of insured automobile accident losses have greatly increased—the result of increased automobile usage, automobile values, and driving speeds. Similarly, the tort law concept of negligence, rooted in the English Common law and dating back many centuries, has also evolved, with the concept of strict contributory negligence giving way to theories of comparable or comparative negligence.
Comparative negligence describes the concept that a claimant's negligence, which along with an insured's negligence causes the claimant's injury, diminishes the damages that the claimant is entitled to recover. Comparative negligence includes any rule under which the relative degree of negligence of the parties is considered in determining whether, and to what degree, either should be held responsible for a loss. The doctrine of comparative negligence is designed to eliminate the “all or nothing” effect of common law contributory negligence rules (by which any amount of negligence “contributed” by the claimant would bar his or her bars recovery).
Comparative negligence rules have developed into three major categories used by the majority of states within the United States, and a number of nations and territories throughout the world: “pure” or “100 percent” comparative negligence rules, “modified” comparative negligence rules, and “slight-gross” comparative negligence rules.
Pure comparative negligence allows a claimant whose negligence is not the sole proximate cause of his injury to recover despite his own negligence, but requires that the amount of his damages be decreased in proportion to the degree of his negligence. Under the pure type of comparative negligence a claimant's recovery is not barred even though his contributory negligence was equal to or greater than the defendant's negligence. (For instance, a plaintiff who is 99% negligent may recover 1% of his damages.) Pure comparative negligence has no application where the negligence of the claimant was the sole proximate cause of the injury, or where the sole proximate cause of the accident was the claimant's negligence.
Under “modified” or “50 percent” comparative negligence, a claimant's contributory negligence is not a bar to recovery if his negligence was not as great as the negligence of the defendant. As with pure comparative negligence, the damages suffered by the claimant are to be reduced by the degree of his or her negligence. For example, a claimant chargeable with 49 percent of the combined negligence resulting in his injury may recover 51 percent of his damages against a party responsible for 51 percent of such negligence, but if the proportion of negligence chargeable to the claimant is 50 percent or more he cannot recover anything.
Under the “slight-gross” rule of comparative negligence, a claimant may recover a proportionate share of his damages where his negligence is not greater than that of the other party. Thus a claimant who is equally negligent with the other party can recover 50 percent of his damages.
There are no hard and fast rules for assessing the relative negligence of the parties to a loss. Such assessments depend on the precise circumstances of each particular case. In certain situations one may consider the comparative knowledge of the parties as to the existence of facts or circumstances creating a hazard. For example, if a party had notice of a hazard, consideration should also be given to whatever precautions that party took for his or her own safety, the extent to which he or she should have appreciated the risk as a result of warnings, experience, or other factors, and the foreseeability of injury as a consequence of his or her conduct. One may also take into account unusual and peculiar circumstances, which create a greater risk. Recognizing these and other concepts and consistently applying them to the facts surrounding a particular accident, however, remains difficult for even the most experienced investigator.
Today's insurance claim investigator must handle a large number of claims. For each claim, the investigator must perform the difficult and time-consuming task of gathering large amounts of information from a variety of sources, including information from the insured, the claimant and any witnesses and police reports. The investigator must then evaluate each claim based on his or her understanding of the relevant legal concepts, and in particular concepts of comparative negligence. Individual claims must be processed fairly and consistently with other claims resulting from like circumstances.
In the past, the components of an investigator's investigation were more often than not “buried” in various locations, for instance in paper files, in computer notes, on audio tapes, etc. This would make the process of locating evidence, comparing statements, and recalling what was said very difficult and time consuming. Without a central repository for the investigation and subsequent negotiations, key elements might be overlooked, depending on the complexity of the claim and independent expertise of the claims adjuster investigating the claim. Another unfortunate result might be that similar accidents handled by different investigators, or even the same investigator on a different day, result in different assessments. Until now there has been no truly uniform method of assessing comparative negligence, either from claim to claim or from investigator to investigator.